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Commissioner, Central Excise & Service Tax, Vapi Versus M/s Dincotex Pvt. Ltd.

2015 (8) TMI 342 - CESTAT AHMEDABAD

Confiscation and seizure of goods - Shortage of finished goods - Imposition of penalty - Respondents illicitly cleared the goods from their factory - Cross examination not granted - Held that:- Commissioner (Appeals) observed that the Show Cause Notice dt.03.05.1993 in respect of seizure of the goods, has already been adjudicated, the Deputy Commissioner, Surat. The re-adjudication of the said case done by the Adjudicating authority in the present de-novo adjudication order, cannot be sustained. .....

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paration of the Panchnama. It has contended that the demand of duty on the basis of the diary has no nexus with the Respondent’s factory. The Respondent also requested for cross examination. Commissioner (Appeals) had discussed the matter in detail on all the issues. Revenue filed this appeal against the impugned order only on the ground that by not producing the witnesses for cross examination, the Panchnama cannot be treated as invalid evidence. The learned Authorised Representative for the Re .....

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nst Revenue. - Appeal No.E/1172/2008-SM - Order No. A/10338 / 2015 - Dated:- 17-4-2015 - Mr. P.K. Das, J. For The Appellant: Shri T.K. Sikdar, Authorised Representative For The Respondent: Shri K.I. Vyas, Advocate Per: P.K. Das 1. Revenue filed this appeal against the order of Commissioner (Appeals), where the Adjudicating order was set aside. 2. The relevant facts of the case, in brief, are that the Respondents were engaged in the manufacture of Man Made Fabrics classifiable under Chapter 54 an .....

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the seized goods and also proposed to impose penalty, which has been decided vide OIO No.29/ADJ/96/OA, dt.14.11.1996 by the Deputy Commissioner, Central Excise, Surat. 4. Another Show Cause Notice dt.28.01.2000 was issued by the Additional Commissioner of Cen.Excise & Customs, Surat-II, proposing demand of Central Excise duty of ₹ 17,07,135.00 alongwith interest and impose penalty on the ground that the Respondents illicitly cleared the goods from their factory. It has also proposed t .....

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ods, which were already been adjudicated by Deputy Commissioner of C. Excise by OIO dt.14.11.1996. The said order was set aside by the Commissioner (Appeals) vide Order No.37-38/Valsad/2003, dt.10.04.2003 and remanded to the Adjudicating authority. 5. In de-novo proceedings, the Joint Commissioner of C.Excise & Customs, vide OIO No.53/AC/Vapi/OA/2004, dt.27.12.2004, again confirmed the demand of duty alongwith interest and imposed penalty and also confiscated the goods in respect of the two .....

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f equal amount on the Respondent and also imposed penalty in the Director and Supervisor-cum-Clerk of the Respondent Company. It has also confiscated the seized goods. By the impugned order, the Commissioner (Appeals) set aside the adjudication order. Hence, Revenue filed this appeal before the Tribunal. 6. After hearing both the sides and on perusal of the records, I find that the Commissioner (Appeals) observed that the Show Cause Notice dt.03.05.1993 in respect of seizure of the goods, has al .....

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espect of the seized goods by the Adjudicating authority in de-novo adjudication cannot be sustained. 7. Regarding demand of duty along with interest and imposition of penalty by the Show Cause Notice dt.28.01.2000, I find that the Respondent challenged authenticity and the preparation of the Panchnama. It has contended that the demand of duty on the basis of the diary has no nexus with the Respondent s factory. The Respondent also requested for cross examination. I find that the Commissioner (A .....

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ries pertaining to said clearances had been made in the Central Excise statutory records and no duty had been paid on the same. It was also revealed that other copies of the said invoice were kept blank. The officers also recovered three private diaries from the bed room of Shri Sanjay Kothari situated at the first floor, two of them written in pencil, containing details of grey MMF and processed MMF such as Pcs, L.Mtrs, Name of the party, Date of receipt and dispatch etc. In this respect, Shri .....

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om the parties through broker and the same were processed by allotting private code number alongwith fictitious lot No. as shown in Col.1 & 2 of diaries. The details of said diaries did not tally with Central Excise records. On calculation, it was noticed that 9014 pcs of processed MMF admeasuring 832748 L.Mtrs valued at ₹ 1,70,71,352/- were cleared to the respective parties by the appellants without payment of duty due thereon. It was also noticed that 663 pcs of processed MMF admeasu .....

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ings stated that he was manage of the appellants; that the records were being maintained by Shri Sanjay Kothari, nephew of the Director of the appellants and they got his signatures on them wherever required; that the diaries written in pencil were being maintained by Shri Sanjay Kothari; that goods received under the recovered under the recovered grey challans were processed and cleared by them to the parties as per the directions of the director of the appellants. 6.2 The appellants in their d .....

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panchnama and that he was called at night at about 9.30 hrs and instructed to sign the panchnama which he signed and left to his factory. They also submitted that cross examination of Shri Mahendra D Desai has not been given to them. 6.3 I find that the impugned order of the Adjudicating authority is based solely on the details of the panchnama and the statement of Shri Mahendra D Desai, Manager of the appellant unit. From the panchnama, I find that the same has been signed by five persons viz. .....

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ex P. Ltd at about 9.30 at night where he was instructed to sign the panchnama and other papers which he signed and left for his factory. From the panchnama, I find that the same was completed at 21.00 hrs and accordingly as per his affirmation he was not present during the panchnama and was called only after the completion of the same. From the affidavit of Shri Paras H. Jain, I find that he reached factory at about 5.00 PM and his signatures were obtained under threat and duress. As seen from .....

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orted to have accepted the illicit clearance of the goods of details mentioned in the diaries. I find that even this statement has been retracted by Shri Mahendra D. Desai vide his letter dt.03.09.1998 written in Gujarati wherein he has stated that his statement was recorded in English and he did not know English and therefore he was not aware of the details mentioned in the statement and he signed it without knowing what is written in the statement. No copy of the said statement was given to hi .....

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bring out the truth but the Department failed to produce them for cross-examination. The impugned order itself records the above fact that cross-examination could not be conducted. The Adjudicating authority records that time and again letters written to the panchas were being returned with the remarks left . It is but natural that when the addressee is not available at the given address all the letters written to him and sent by post at the given address are bound to return with the remarks lef .....

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h should have been produced for cross-examination by any legal means. If required, recourse of sending summons through court could have been used by the Adjudicating authority. In nutshell, no attempt has been made by the Adjudicating authority to present the panchas for cross-examination inspite of the direction of Commissioner (Appeals) given by him while remanding the case for de-novo adjudication and as such I hold that principles of natural justice have been gravely violated in this case an .....

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